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Waudby v. Verizon Wireless Services

February 14, 2008

JOHN WAUDBY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, CLASS PLAINTIFF,
v.
VERIZON WIRELESS SERVICES, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hughes, U.S.M.J.

MEMORANDUM OPINION

I. INTRODUCTION

This matter comes before the Court upon Motion by Movant Brian Thormann ("Movant") to Intervene in this Action and for Appointment of Interim Class Counsel [dkt. entry no.24], returnable February 4, 2008. Both Class Plaintiff John Waudby ("Plaintiff") and Defendants Verizon Wireless Services LLC, et al. ("Defendants") oppose Mr. Thormann's Motion. In addition, Mr. Waudby filed a cross-motion to appoint Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart, & Olstein, P.C.; Freed & Weiss, LLC; Seeger Weiss; and Richard J. Burke LLC (collectively "Carella Byrne") as interim class counsel. Mr. Thormann filed a reply on January 18, 2008. The Court considered all of the parties' submissions and decided this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons stated herein, Mr. Thormann's motion to intervene is denied and Carella Byrne is appointed interim class counsel.

II. PROCEDURAL AND FACTUAL BACKGROUND

Movant Brian Thormann seeks to intervene in this class-action lawsuit that was filed on January 27, 2007. In the Complaint, Plaintiff alleges that Defendants' "early termination fee" ("ETF") gives rise to claims for violation of (1) the Federal Communications Act; (2) the New Jersey Consumer Protection Act; (3) alternatively, violations of the substantially similar laws of certain states; and (4) Declaratory Relief pursuant to 28 U.S.C. § 2201. (Pl.'s Compl. at ¶ 4.)

Proposed intervenor, Mr. Thormann, is a member of the putative class in the pending Arbitration*fn1 and a member of the putative class in this action. He seeks to intervene under Federal Rules of Civil Procedure 20(a) and 23(d)(2). Moreover, he seeks to have his counsel, the Law Offices of Scott A. Bursor, appointed as sole Lead Counsel.

Movant's Counsel argues that since the Arbitrator appointed Mr. Bursor as sole Lead Counsel in the California-arbitration, which has been going on for four years, then this Court should similarly grant Movant's motion to intervene as well as its motion for appointment of class counsel. In furtherance of its arguments, Movant states that Mr. Weiss and his colleagues were discharged from the Arbitration in January 2007. (Movant's Br. at 1.) Movant then argues that a month later Mr. Weiss copied verbatim the pleading from the Arbitration and then filed it with this Court. Id.

III. DISCUSSION

A. Movant's Motion to Intervene

Movant argues that he is a member of the putative class defined in paragraph 30 of Mr. Waudby's Complaint as "[a]ll persons who Verizon charged an ETF." (Movant's Br. at 2.) Thus, Movant argues that he should be permitted to intervene under Federal Rules 24 and 23(d)(2). Id. Defendants oppose Movant's motion arguing that Movant failed to comply with Rule 24(c) and, in addition, failed to demonstrate that he is entitled to intervene as of right pursuant to Rule 24(a).

1. Federal Rule of Civil Procedure 24(a)

Federal Rule of Civil Procedure 24(a) states that "[u]pon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the application may, as a practical matter, impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." Fed. R. Civ. P. 24(a) (emphasis added).

Here, Movant has not shown that his interest would be impaired by the case moving forward without him intervening. In fact, quite the opposite is true because if the class is certified, the Court would deem that Movant's interests are adequately protected. See Fed. R. Civ. P. 23(a)(4). If, on the other hand, the class is not certified than Movant remains free to file an independent action to pursue his claims. Moreover, Movant can opt out of any class that may ultimately be certified in order to pursue his claims independently. Thus, the Court finds that Movant has not demonstrated a real deprivation of interests. See In re Safeguard Scientifics, 220 F.R.D. 43, 48-49 (E.D. Pa. 2004) (the court denied a proposed intervention of a class member under Rule 24 because the class member was free to pursue an individual claim). By his own statement, Movant proves that he is not entitled to intervene as of right since both he and Mr. Waudby have the same goal. Specifically, Movant ...


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